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Errors in charges and specifications are classified in two groups—clerical and technical. Clerical errors are those of spelling, punctuation, etc., correction of wbich does not alter facts: and those may, with the approval of the court, be corrected by the judge advocate. (Forms of Procedure, 1910, p. 21.)
Technical errors are, in general, those which the charges and specifications disclose, and which would be sufficient to sustain a demurrer or special plea; such as a charge not supported by the specification, uncertainty as to the time or place of the offense, lack of jurisdiction of the court, etc. (Forms of Procedure, 1910, p. 21.)
All corrections to charges and spocifications should be made on accused's copy.
It is not within the discretion of either the judge advocate, court, or any other party to correct technical errors in the charges and specifications without the consent of the convening authority. If the court is in doubt as to whether an error in the charges and specifications is clerical or technical it should treat it as a technical error and thus avoid any possibility
of having the case disapproved on a technicality of this nature. C. M. O. 42, 1914, 3. See olso C. M. 0. 27, 1898, 1; 16, 1911, 4. 34. Same- Procedure to correct-If the court decides that a charge and specification con
tains a technical error it should suspend proceedings and follow the procedure laid down in Forms of Procedure, 1910, p. 21. If the court follows this procedure in every case where it is not absolutely certain that the error is clerical, the convening authority will then have an opportunity to amend the charge and specification. (C. M. 0. 16, 1911, p. 4.) C. M. O. 42, 1914, 3. See also CHARGES AND SPECIFICA
TIONS, 33, 35. Same Court errs if it pronounces faulty charges and specifications in “due form and
technically correct." C. M. 0. 16, 1911, 4; 35, 1915, 6–7. 36. Same-- Faulty specifications. See CHARGES AND SPECIFICATIONS, 92. 37. Same-Waived by plea of "guilty.” See ABSENCE FROM STATION AND DUTY WITHOUT
LEAVE, 29. 38. Essentials-Of offense must be set forth in a deck-court specification. See DECK
COURTS, 59. 39. Same-In reviewing the case the department noted that the three specifications under
a charge did not designate the party accused nor set forth the time of the alleged offenses, the ship on which the alleged offenses took place, nor the attending circumstances, as required by the provisions of the Navy Regulations, and as they contain no allegation of any offense committed by the accused, the findings thereon and upon
the charge were disapproved. C. M. 0.3, 1907, 1. See also File 26287–1041. 40. Extraneous matter--In drawing up the charges and specifications, all extraneous
matter is to be carefully avoided, and nothing shall be alleged but that which is culpable and which makes a prima facie case which the prosecution may reasonably expect to substantiate before a court-martial. C. M. 0. 4, 1916, 3. See also CHARGES
AND SPECIFICATIONS, 58; 23 J. A. G., 376. 41. "Fatally defective." See File 27217-1611. See also FRAUD, 5. 42. Findings-When the accused pleads "guilty,” the proper finding for the specification
is “proved by plea,” and for the charge "guilty." See FINDINGS, 12. 43. Form of-Accused may be tried at the same time for more than one offense, but each
offense must be separately charged, and each charge must be followed by a separate specification, so that the party accused may be able to plead separately to each charge and specification. G. 0. 114, March 22, 1869. See also CHARGES AND SPECIFICATIONS,
15, 39, 44, 45. 44. Same--Convening authorities should follow prescribed forms. See CHARGES AND
SPECIFICATIONS, 15, 39, 43, 45. 45. Same-Summary court-martial-The specification shall be framed in accordance with
the provisions of R-712 and R-713 (general courts-martial charges and specifications), a separate specification shall be used for each distinct offense, and two or more such
specifications may be joined for a single trial. C. M. 0. 16, 1916, 6–7. 46. “Guilty,” plea of —Waives defects in specifications. See ABSENCE FROM STATION
AND DUTY WITHOUT LEAVE, 2). 47. Higher criminality-In all cases in which the law attaches higher criminality to acts
committed under particular circumstances, the act must, to bring the person within the higher degree of punishment, be charged to have been committed under those circumstances, which must be stated with certainty and precision. For instance, by sections 6 and 7, article 4, Articles for the Government of the Navy (R-4), the penalty of death shall, in time of war, be inficted for desertion, betrayal of trust, or enticing others to commit these crimes; in a charge, therefore, under one of these sections, it
must be laid that the offense was committed in time of war. C. M. 0.8, 1913, 7. 48. Highest crime-It is not necessary to charge an accused with the highest crime which
the facts known at the time of drawing up the charges and specifications seem to indi. cate; this is within the discretion of the convening authority or the Secretary of the Navy; and the fact that an accused may be guilty of murder, for example, does not prevent him from being charged with manslaughter. File 148-04, J. A. G., Jan. 7,
1904. See also MURDER, 11, 16, 22, 24, 25. 49. Immaterial allegations-An offense is charged by the statement of the material facts
which constitute it, and not by the statement of a mere conclusion of law. Nevertheless, particularity of description in charges and specifications is to be preferred and is sustained by practice. (See 7 Op. Atty. Gen., 601, 605; 28 Op. Atty. Gen. 292.) C. M. 0.8, 1913, 6–7; 4, 1914, 1, 7.
If the charge and specification taken together amount to a statement of an offense cognizable under the Articles for the Government of the Navy, either under a specific or the general article, it will properly be held sufficient as a legal basis for trial and
sentence. File 27217-1611. 50. "In violation of regulation"-Is equivalent to "without authority.” C. M. 0. 21,
1910, 6. 51. Indefinite-A specification of a charge alleging that the accused did wuse abusive and
profane language toward a person unknown” is vague and indefinite, does not properly in orm the accused of the specific offense with which he is charged and against which he must de end himself, and is not in accordance with the department's instructions, which require the objectionable language used should be alleged. C. M. 0.7,
1911, 12. See also C. M. O. 78, 1905, 1. 52. Intent-In cases where the law has adopted certain expressions to show the intent
with which an offense is committed, the intent shall be expressed by the technical
a false muster must be laid to have been done knowingly.” (R-712.) See JOINDER, TRIAL IN, 19. 53. Irregular-Convening authority and members of court responsible—The accused
(enlisted man) was tried by general court-martial by order of the Commander-in-Chief, United States Pacific Fleet, and found guilty of the following charges: “Absence without leave and out of uniform ashore," and "Resisting arrest and assaulting a chief petty officer." The accused was represented by civilian counsel and made no objection to the charges and specifications. The court sentenced the accused, and the proceedings, findings, and sentence were approved without comment by the commander-in chief.
A reference to the Navy Regulations, 1913, Forms of Procedure, 1910, and courtmartial orders will show that both of the above charges are extremely irregular, in that each charge contains more than one offense of a perfectly distinct nature" (Navy Regulations, 1913, R-712 (2)) and is not phrased in the form prescribed. (See Navy Regulations, 1913, R-900, Limitation of Punishment; Forms of Procedure, 1910, pp. 89-131, Specimen Charges and Specifications; pp. 313-319, Limitation of Punishment; see also tabulations in monthly court-martial orders.).
It is obvious that the court erred when it "found the charges and specifications in due form and technically correct." (See Forms of Procedure, 1910, p. 21. See also
G. C. M. Rec. Nos. 31019; 31020; File 26262–2366; 26262-2367.) 'C. M. 0.35, 1915, 6–7. 54. Joinder. See JOINDER, TRIAL IN. 55. Judge Advocate-May correct clerical errors, etc. See CHARGES AND SPECIFICATIONS,
33. 56. Language-The objectionable language used by the accused must be set forth in the
specifications alleging its use. See CHARGES AND SPECIFICATIONS, 51. 57. Letter of transmittal-The letter to the judge advocate of the court transmitting
the charges and specifications on which a person is to be tried, or a properly authenticated copy of the same, must in every case be filed with the charges as a part of the record of the court. (R-716.) See CHARGES AND SPECIFICATIONS, 59; LETTERS,
27-30. 58. Manslaughter-The department is reluctant to prepare a charge of “Manslaughter” or any other charge which there is not
a reasonable expectation of proving, and such action, if taken, would be contrary to R-712 (1). File 26250-802:7, Sec. Navy, Aug. 5,
1916. See also CHARGES AND SPECIFICATIONS, 40. 59. Marking of—The only requirement in the "Forms of Procedure, 1910,” as to marking
charges and specifications and letters of transmittal, is that documents relating to the organization of the court shall be marked with capital letters, and instruments of evidence with numbers. While the letter of transmittal and the charge and specification are not, perhaps, strictly within either of the above-mentioned classes, yet they more nearly resemble documents relating to the organization of the court than otherwise; certainly they are not instruments of evidence. The letter of transmittal is the document that gives thecourt jurisdiction in that particular case over the person named therein, and therefore it is considered proper that such papers should be marked in the same manner as are documents relating to the organization of the court.
C. M. O. 8, 1911, 6. 60. Middle names-Christian names, other than the first, may be indicated by initial
letters in specifications. C.M.O.36, 1914, 6, 7; 4, 1916,5; 14, 1916; File 26287-2104, Sec. Navy, July 22, 1914. See also C. M.'0. 150, 1897, 3; 1, 1914, 4; 5, 1914, 7; 40, 1914; G. C.
M. Rec. 29584. 61. Multiplicity or plurality-For same offense should be avoided—The law permits as
many charges to be preferred as are necessary to provide for every possible contingency in the evidence. Where the offense falis apparently equally within the scope of two or more articles of the Articles for the Government of the Navy, or where the legal character of the offense can not be precisely known or defined until'developed by the proof, it is quite proper in important cases to specify the offense under two or more charges. (C. M. 0. 19, 1911, 3-4.) There is no rule of law which prohibits the formulation of the same charge under more than one article. (C. M. 0. 4, 1913, 46.).
The department's instructions merely mean that as a matter of policy the rule which permits such duplication of charges is not to be availed of when the offense falls quite clearly within the definition of a specific article, where there are no aggravating circumstances distinguishing it from the ordinary case contemplated by such article, and when there is no necessity to resort to multiplicity or plurality of charges. C.M.O.
42, 1914, 7; 49, 1915, 18. 62. Same-Department does not approve of trying an accused on two or more charges
where the identical facts are made the basis of both—Department's policy is opposed to duplicating charges based on identical facts, where there are no aggravating circumstances set forth under one charge which distinguishes it from the other. Where an objection is made to charges and specifications on this ground, if the court finds that the charges and specifications have apparently violated the department's policy, the case should be referred without delay to the convening authority in the manner prescribed by R-774 (2). C. M. 0. 5, 1914, 7; 42, 1914, 7; 49, 1915, 18. See also File 26262–2338; G. C. M. Rec. 30929.
An accused was tried by general court-martial by order of the Commander-in-Chief U.S. Asiatic Fleet, upon charges among which was one of “drunkenness.” Under this charge there were three
first one alleging that the accused was under the influence of intoxicating liquor at or about 5.20 p. m. February 15, 1916; the second specification alleging that he was under such influence at 5.45 p. m. on the same date; and the third alleging that he was under such influence at about 6 p. m. on the samé date.
Since it seems impossible that a man could become three times intoxicated and twice sober during so short a period as 40 minutes, it would appear that the facts alleged in the three specifications all relate to the original state of intoxication continuing during this 40-minute period, and that there had been but one act of becoming intoxicated and but one resulting state of intoxication. The mere fact that the location of the accused may have changed while intoxicated does not in itself.constitute a distinct offense. Also, when one has become intoxicated, his continuance in this state until sufficient time has elapsed to permit of his becoming sobered, is to be presumed, and such a continuance forms a necessary part of each single offense of “drunkenness" and should not be separately alleged. To hold otherwise would be, in effect, to allow a different specification for every second a man's intoxication might
continué. G.C. M. Rec. 32124; C. M. 0. 17, 1916, 9. 63. Same-An accused should not be charged with both “Absence from station and duty
without leave” and “Conduct to the prejudice of good order and discipline” where he is guilty of only simple absence without leave. C. M. 0. 5, 1914, 7; 25, 1914, 5. See also ABSENCE FROM STATION AND DUTY WITHOUT LEAVE, 12; CHARGES AND SPÉCI
FICATIONS, 64-68. 64. Same-In á case where an accused was charged with both "Absence from station and
duty without leave" and "Conduct to the prejudice of good order and dicipline" for the same period of unauthorized absence, and no aggravating circumstances were present, the department disapproved the finding on the second charge. C. M. O. 42,
1909, 9, 11. See also C. M. 0. 51, 1910, 2. 65. Same- Accused should not be charged with both “Desertion "and "Absence from
station and duty after his leave had expired” for the same period of unauthorized absence. C. M. 0. 49, 1910, 15–16; 5, 1914, 7. See also DESERTION, 5.
66. Same-Accused should not be charged with both “Attempting to desert” and “Ab
sence from station and duty without leave from proper authority” for the same
period of unauthorized absence. C.M.O. 23, 1910, 6. 67. Same-Accused should not be charged with both "Falsehood” and “Conduct to the
prejudice of good order and discipline” for the same identical offense-It is frequently advisable, when the crime is of a complicated nature, or it is uncertain whether the evidence will support the higher and more criminal part of the charge or the charge precisely as laid, to insert two or more specifications under the charge. Every cautious pleader will insert as many specifications as will be necessary to provide for every possible contingency in the evidence, and this the law permits. In naval cases where the offense falls apparently equally within the purview of two or more Articles for the Government of the Navy, or where the legal character of the act of the accused can not be precisely known or defined until developed by the proof, it is not infrequent in cases of importance to state the accusation under two or more charges. If the two articles impose different penalties, it may, for this additional reason, ke desirable to prefer separate charges, since the court will be invested with a wider discretion as to the punishment. Where, however, the case falls quite clearly within the definition of a certain specific article, to resort'to plural charges is neither good pleading nor just
to the accused. C. M. 0. 19, 1911, 3-4. 68. Same-It is neither good pleading nor just to the accused to resort to plural charges for
the same offence when the cffense is clearly defined. An unnecessary multiplication
of forms of charge for the same offense is always to be avoided. C.M. 0. 19, 1911, 3. 69. Names–Middle names may be abbreviated in specifications. See CHARGES AND
SPECIFICATIONS, 60. 70. Neglect or disorder not specially provided for-When the offense is a neglect or
disorder not specially provided for, it shall be charged as “Scandalous conduct tending to the destruction of good morals," or "Conduct to the prejudice of good order and discipline." C. M. O. 4, 1913, 45; 49, 1915, 17, 18; File 26251-920; 26262–1920, 1921,
Sec. Navy, Jan. 5, 1914. See also "CATCH-ALL" CLAUSE, 1. 71. “Negligence in the performance of duty”-Is a lesser degree of the charge “Cul
pable inefficiency in the performance of duty." C.M.O. 12, 1910, 1. 72. Nolle Prosequi. See NOLLE PROSE QUI. 73. Objections to–Procedure in case of. See CHARGES AND SPECIFICATIONS, 33, 34. 74. Offense-Charge should contain only one offense-Offenses of a perfectly distinct
nature must not be included in one and the same charge and specification of a charge, but each offense of a different kind shall be the subject of a distinct charge and speci
fication. C. M. 0.35, 1915, 6–7; 16, 1916. See also CHARGES AND SPECIFICATIONS, 53. 75. Same_Must allege an offense. Seé CHARGES AND SPECIFICATIONS, 39. 76. One charge_The figure “I” should not be used. See C. M. 0. 32, 1915, where this
was erroneously done. 77. One offense-Specification should contain only one offense. C. M. 0. 16, 1916, 6–7.
See also CHARGES AND SPECIFICATIONS, 53, 74. 78. Particular words—Where particular words form the gist of the offense, they must
be set forth with particularity, or declared to be of the like meaning and purport.
(R-714 (3).) 79. Particularity of description-Is desirable. See CHARGES AND SPECIFICATIONS, 49. 80. Period of unauthorized absence-Should be alleged. See ABSENCE, 10, 11; AB
SENCE FROM STATION AND DUTY WITHOUT LEAVE, 29. 81. Perjury. See PERJURY, 1, 3, 16. 82. Place-Of offense should be alleged in specifications. (G. C. M. Rec. 23743.) C. M.
O. 10, 1901, 7; 3, 1907, 1; 10, 1911, 7. See also CHARGES AND SPECIFICATIONS, 39, 92. 83. Plea of "guilty”_Waives defects in specifications. See ABSENCE FROM STATION
AND DUTY WITHOUT LEAVE, 29. 84. Plurality or multiplicity of charges. See CHARGES AND SPECIFICATIONS, 31-32,
61-68. 85. Record of proceedings—The original charges and specifications should be prefixed
not appended to the record of proceedings. C. M. 0. 24, 1909, 3; 28, 1910, 5. See also G. 0. 114, March 22, 1869. "This overrules C. M. 0. 1, 1894, 3; 3, 1894; 62, 1894;
54, 1898. 86. Same-The date the accused received a copy of the charges and specifications should
be entered on the record of proceedings. * c. M. 0. 36, 1905, 3; 17, 1910, 5. See also
RECORD OF PROCEEDINGS, 44. 87. Reiteration-of charges and specifications. C. M. O. 42, 1909, 9; 51, 1910, 2; 23, 1910, 6.
See also CHARGES AND SPECIFICATIONS, 31-32, 61-68.
88. Robbery. C. M. 0.8, 1913, 5–7. See also CHARGES AND SPECIFICATIONS, 92; ROBBERY. 89. Sentence-Maximum sentence that may be adjudged where there is a multiplicity
of charges. See EXCESSIVE SENTENCES, 2, 3. 90. Service on accused. See CHARGES AND SPECIFICATIONS, 4, 5, 18. 91. Signing of, by convening authority-Time and place of signing charges and speci
fications by convening authority should be stated. C. M. 0. 159, 1897, 2; 160, 1897, 2.
Precepts and charges and specifications must affirmatively show on their face that the officer signing was one of those mentioned in the law authorized to convene naval courts-martial. The single word "Acting” beneath the signature does not indicate in any way that the officer signing has the necessary authority. File 26262–1920, 1921,
Sec. Navy, Jan. 5, 1914. See also CONVENING AUTHORITY, 63. 92. Specifications—The department has criticized faulty specifications for the follow
Absence, unauthorized. See ABSENCE FROM STATION AND DUTY WITHOUT LEAVE, 10, 12, 13, 29. Dates.-Must be written in specifications. C. M. O. 28, 1910, 5.
Desertion.-Date of identification of accused while serving in Army must be alleged in specification. C. M. 0.33, 1912, 2; 6, 1913, 4.
A specification which simply alleges that the accused deserted from a certain ship, continuing in desertion until after departure of said vessel, and which does not further allege that he deserted from the United States Navy, or more properly that he continued in such unauthorized absence with intent to permanently abandon the naval service, is not sufficient to sustain a charge of desertion. C.M.0.49, 1910, 9.
Drunkenness on duty:-The specification under a charge of " Drunkenness on duty” did not specify any duty that the accused was performing, simpy stating that he was so much under the influence of some intoxicant as to be unfit for the proper performance of his duty. C. M. 0. 12, 1909, 1; 23, 1910, 4.
Each specification must support charge.-Each specification standing alone must contain sufficient allegations to support the charge under which it appears. C. M. O. 107, 1894, 2; 21, 1910, 7, 8, 11.
Language.-Objectionable language used by accused must be set forth. C. M. 0. 7, 1911, 12
Multiplicity of specifications. See CHARGES AND SPECIFICATIONS, 31-32, 61-68.
Names.-Middle names may be abbreviated. C. M. 0. 36, 1914, 6, 7, 4, 1916. See also C. M. O. 150, 1897, 3; 1, 1914, 4; 5, 1914, 7; 40, 1914.
Not well drawn. C.'M. 0.34, 1900, 1.
Party' accused.-Specification must designate party accused. C. M. 0. 3, 1907, 1.
Perjury.--A specification of the charge alleging perjury was faulty, in that, while it properly alleged that the testimony given by the accused was false, it did not set forth what was the truth in regard to the matter. (U. S. v. Pettus, 84 Fed. Rep., 791, 794; Bartlett v. U.S., 106 Fed. Rep., 884.). C. M. O. 47, 1910, 5. Place of offense.
-The specification must show the place where the offense was committed. C. M. 0.3, 1907, 1; 10, 1901, 7; 10, 1911, 7; G. C. M. Rec. 23743.
Plurality of specifications. See CHARGES AND SPECIFICATIONS, 31, 32, 61-68.
Robbery.-The essential feature of the crime of robbery which distinguishes it from theft both in common law and statutory law is the taking from the person or in the presence of the owner or custodian, and as this very essential and necessary element was not alleged in the specification the department held that it did not support the charge and that there had not been a legal trial and conviction and disapproved the finding on that charge and specification. C. M. 0. 8, 1913, 5–7.
Seditious words.--Specification did not allege that the words uttered were either known to be seditious, or that they were spoken with that intent; such an allegation is essential. C. M. 0. 14, 1910, 14.
Time of offense.-The specification must show, at least approximately, the time of the commission of the offense. C. M. 0. 33, 1914, 6. See also C. M. 0. 3, 1907, 1; 10 1911, 7; 19, 1912, 5; File 26287-2121, Sec. Navy, Aug. 5, 1914; 26251-12309, October, 1916.
Two offenses in one specification. A specification is faulty which alleges two separate and distinct offenses. C. M. 0. 8, 1911, 8; 16, 1911, 3." See also G. 0. 114, Mar. 22, 1869.
Accused waz tried by summary court-martial under one specification which alleged "his return to said ship from special liberty drunk and disorderly;" and that he did, “while being placed in confinement *** forcibly resist arrest.” Thus two dis